Cooney v. Rossiter

• Decision Date: 30 September 2009
• Docket Number: No. 08-3675.,08-3675.
• Citation: 583 F.3d 967
• Parties: Deborah Orlando COONEY, Plaintiff-Appellant, v. Lyle ROSSITER, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

583 F.3d 967

Deborah Orlando COONEY, Plaintiff-Appellant, v. Lyle ROSSITER, Jr., et al., Defendants-Appellees.

No. 08-3675.

United States Court of Appeals, Seventh Circuit.

Submitted August 27, 2009.

Decided September 30, 2009.

Rehearing and Rehearing En Banc Denied October 29, 2009.

Deborah O. Cooney, Chicago, IL, pro se.

James P. Devine, Williams & McCarthy, Rockford, IL, Bruce R. Meckler, Meckler Bulger Tilson Marick & Pearson, John M. Hynes, Clausen Miller, Barbara L. Greenspan, Office of the Attorney General, Robert J. Meyer, Swanson, Martin & Bell, Chicago, IL, for Defendants-Appellees.

Before BAUER, POSNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

Deborah Cooney lost custody of her two sons after an Illinois state court found that she suffered from "Munchausen syndrome by proxy," in which "an individual produces or feigns physical or emotional symptoms in another person under his or her care. Usually the victim is a young child, and the person producing the symptoms may be the child's parent or caretaker, most often the mother." American Medical Association, Complete Medical Encyclopedia 870 (Jerrold B. Leikin & Martin S. Lipsky eds.2003); see also Thomas Lathrop Stedman, Stedman's Medical Dictionary 1906 (28th ed.2006). She sued the state court judge (Judge Nordquist), and others as we'll see, in federal district court, charging constitutional violations. The district court dismissed the suit. Judge Nordquist is of course absolutely immune from suit, since he was acting in his judicial capacity in ruling that Cooney was not entitled to custody.

Cooney's complaint tells the following story. In 1998 she divorced her husband and was awarded custody of the couple's two sons. Later the ex-husband—through his attorney, defendant Cain—filed a petition to transfer custody to himself. Judge Nordquist, the judge presiding over the custody proceeding, appointed defendant Bischoff as the children's representative. Under Illinois law, in proceedings involving a minor, the court can appoint a lawyer (1) to represent the child as an attorney would represent an adult, (2) to be the child's representative, or (3) to be the child's guardian ad litem. 750 ILCS 5/506(a). The powers and duties of a child's representative are very similar to those of a guardian ad litem. Compare id., § 5/506(a)(2) with id., § 5/506(a)(3). The principal differences are that unlike a guardian ad litem a child's representative "shall consider, but not be bound by, the expressed wishes of the child" and "shall not render an opinion, recommendation, or report to the court and shall not be called as a witness" but instead "shall offer evidence-based legal arguments." Id.; see In re Marriage of Bates, 212 Ill.2d 489, 289 Ill.Dec. 218, 819 N.E.2d 714, 726 (2004).

In other words, the child's representative is a hybrid of a child's attorney, 750 ILCS 5/506(a)(1), and a child's guardian ad litem. Carl W. Gilmore, Understanding the Illinois Child's Representative Statute, 89 Ill. B.J. 458, 460 (Sept.2001); see In re Marriage of Kostusik, 361 Ill.App.3d 103, 296 Ill.Dec. 732, 836 N.E.2d 147, 158 (2005). The more mature the child, the likelier the court is to appoint an attorney to represent the child; the less mature, the likelier that a guardian ad litem will be appointed; and for children of intermediate maturity, there is the child's representative. Cf. Gilmore, supra, at 461.

Cooney's complaint alleges that Bischoff "orchestrated" a court order appointing defendant Rossiter as the children's psychiatrist and began a "witch hunt" against Cooney by telling Rossiter that "this may be a situation of Munchausen syndrome (on the part of the Mother)." Eight months later Rossiter completed his report, concluding that Cooney was indeed exhibiting signs of Munchausen syndrome by proxy. He noted a number of occasions over a period of ten years on which Cooney had attempted to have doctors diagnose her older son with severe illnesses or injuries. According to the complaint, attorney Cain received a copy of Rossiter's report (from Rossiter, Bischoff, or the judge), but Cooney did not. Cain petitioned for an emergency order of protection that quoted directly from Rossiter's draft report. Judge Nordquist granted the petition, stating that Cooney was "armed and suicidal," and temporarily transferred custody of the children to her ex-husband, their father. "[T]hereafter, numerous other conspiratorial acts and violations" of Cooney's constitutional rights occurred, among them that defendant Klaung, the children's therapist, "made false statements" to the Department of Children and Family Services that led to a finding of child abuse by Cooney.

Rossiter and Bischoff are entitled to absolute immunity. Guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court's direction. E.g., Jones v. Brennan, 465 F.3d 304, 308 (7th Cir.2006) (Illinois law); Scheib v. Grant, 22 F.3d 149, 157 (7th Cir.1994) (same); Hughes v. Long, 242 F.3d 121, 127-28 (3d Cir.2001); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984). They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges do. Experts asked by the court to advise on what disposition will serve the best interests of a child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations "without the worry of intimidation and harassment from dissatisfied parents." Id. at 1458. This principle is applicable to a child's representative, who although bound to consult the child is not bound by the child's wishes but rather by the child's best interests, and is thus a neutral, much like a court-appointed expert witness.

Although Cooney charges that Rossiter and Bischoff were part of an illegal conspiracy to deprive her of custody of the children, they are entitled to absolute immunity because the specific acts (actual or alleged) of which she complains, such as that Bischoff and Rossiter communicated with each other about their perceptions of Cooney and the children, that the conclusions in Rossiter's report are false, and that Bischoff may have given a draft copy of the report to Cain but not to Cooney, all occurred within the course of their court-appointed duties. Cooney does not allege that Rossiter or Bischoff engaged in misconduct outside that course, as in Jones v. Brennan, supra, 465 F.3d at 308.

The appeal presents a second issue. Because lawyer Cain and therapist Klaung are private persons, Cooney could bring them within the reach of section 1983 only by charging that they had agreed with a state officer to deprive her of constitutional rights. See Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.1998).

Even before Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009), a bare allegation of conspiracy was not enough to survive a motion to dismiss for failure to state a claim. E.g., Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir.2006); Walker v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir.2002); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997); Young v. Biggers, 938 F.2d 565, 569 (5th Cir.1991). It was too facile an allegation. But it was a narrow exception to the notice-pleading standard of Rule 8 of the civil rules—a rare example of a judicially imposed requirement to plead facts in a complaint governed by Rule 8.

In Bell Atlantic the Supreme Court went further, holding that in complex litigation a complaint must, if it is to survive dismissal, make plausible allegations. In Iqbal the Court extended the rule of Bell Atlantic to litigation in general. Brooks v. Ross, 578 F.3d 574, 2009 WL 2535731, at *5 (7th Cir. Aug.20, 2009); Hensley Mfg., Inc. v. ProPride, Inc., 579 F.3d 603, 2009 WL 2778220, at *8 n. 4 (6th Cir. Sept.3, 2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 2009 WL 2501662, at *4 (3d Cir. Aug.18, 2009); ...